Bushie v. Johnson

Boyles, J. This is a suit under the guest act for fatal injuries to plaintiff’s decedent, George Bushie, *10 received while riding as a claimed guest in an automobile owned by defendant Arthur W. Johnson, in possession of defendant Earl Johnson (his son), and driven by defendant James Gallagher. At the •close of plaintiff’s case, and again at the end of the testimony, defendants moved for a directed verdict. These motions were taken under advisement and the case submitted to the jury. Plaintiff had verdict against all defendants for $2,500. Defendants moved for judgment notwithstanding the verdict. The court granted the motion and entered judgment for defendants, from which judgment plaintiff appeals. As the cause of action, plaintiff’s amended declaration alleged that the defendants were guilty of gross negligence and wilful and wanton misconduct ; that the decedent was a guest passenger and not engaged in a joint venture with the defendants but was riding in the car as a nonpaying guest. The case was tried and submitted to the jury under the guest passenger act upon the theory that the defendants were guilty of gross negligence and wilful and wanton misconduct. The jury was instructed that the plaintiff must establish by a preponderance of the evidence that James Gallagher, the driver of the car, was guilty of gross negligence or wilful and wanton misconduct. No error has been assigned by defendants on any part of the charge to the jury. Taking the evidence in the light most favorable to the plaintiff, the facts in the case are these: Early in the forenoon of Sunday, June 27,1937, Earl Johnson, James Gallagher, one Einar Strom, and two others came together at a filling station near Iron River. Earl Johnson was using the car of his father, defendant Arthur W. Johnson, with his consent. They decided to go to a beer tavern, where they stayed for a while, and plaintiff’s decedent, George Bushie, joined them there. They were all young *11 men about 20 to 23 years of age. "While in this first beer tavern they each drank about six rounds of beer. About 11:30 o’clock they decided to go to another tavern, where they stayed for a time drinking beer. Earl Johnson and James Gallagher left the party and went to Johnson’s home around 1 o’clock for Johnson to change his clothes. James Gallagher remained in the car while Johnson went inside the house, and then they returned to the beer tavern where they had left the other members of the party. They drank some more beer there, the party at that time including Earl Johnson, Einar Strom, James Gallagher, George Bushie, and two others. It was then decided to go to another drinking place across the State line in "Wisconsin. They’ started out in the Johnson car, James Gallagher driving. Bushie and Strom either invited themselves to go along, or were invited, and rode in the rear seat. Earl Johnson rode beside Gallagher, the driver. On the way there Strom cautioned Gallagher about driving too fast and says that he would then slow down. They spent some time at this tavern in "Wisconsin drinking beer or tomato juice and playing slot machines. Sometime around 3 o’clock or later in the afternoon the four men started on the return trip to Iron River, James Gallagher still driving, Earl Johnson beside him, and Bushie and Strom in the rear seat. Strom several times cautioned Gallagher to drive slower and Gallagher would slow down and then after a few miles go fast again. Strom warned him of speed on the curves. Somewhere near the State line on the return trip the car was stopped and two or more of the party got out to answer nature’s call. Gallagher and Johnson both testify they do not remember what happened after that. Strom says that Gallagher drove 60 to 70 miles an hour and sort of zigzagged. Strom *12 is plaintiff in a companion case against these defendants and his testimony was to some extent impeached. There were a number of curves between the last drinking place and the point where the accident finally occurred. Strom warned Gallagher of several curves ahead and testified that Gallagher said to Johnson “Watch me give them a real scare.” They both deny that. He accelerated the speed to 70 miles per hour. The road was a new blacktop pavement, two lanes wide. It was a bright summer day. The driver was fully familiar with the highway in question. Gallagher successfully navigated all the curves but, after coming out of an S-curve, onto a straight road, the car went off the pavement and ran into a large tree. Bushie died as a result of the injuries caused by this accident. We accept the claim of the plaintiff in her declaration that plaintiff’s decedent was a guest passenger in the car owned by defendant Arthur W. Johnson, in the possession of his son, defendant Earl Johnson, and driven by defendant James Gallagher, with consent of the owner. Bushie was not a passenger for hire. Under these circumstances, plaintiff cannot recover unless the accident was caused by the gross negligence or wilful and wanton misconduct of the owner or operator of the vehicle. 1 Comp. Laws 1929, § 4648 (Stat. Ann. § 9.1446). Applying the rule laid down in Marchand v. Russell, 257 Mich. 96, to this case, Gallagher, the driver, was the alter ego of Earl Johnson and, therefore, driving the car with the consent of the owner. His acts are in legal effect the acts of the owner. Plaintiff relies upon testimony of speed, zigzagging, repeated warnings to the driver, and the driver’s statement, “Watch me give them a real scare.” There was no testimony as to the degree of the curves. Mere excessive speed does not con *13 stitute gross negligence. Balcer v. Railway Co., 266 Mich. 538; Fink v. Dasier, 273 Mich. 416; In re Mueller’s Estate, 280 Mich. 203; Bielawski v. Nicks, 290 Mich. 401. Repeated warnings to the driver to slow down or drive slower do not make the driver guilty of gross negligence. Bobich v. Rogers, 258 Mich. 343; Pawlicki v. Faulkerson, 285 Mich. 141. Noncompliance with the request of a guest passenger relative to speed is not of itself evidence of wilfulness or wantonness. Bobich v. Rogers, supra; Mogill v. Resnick, 263 Mich. 103; Fink v. Dasier, supra; Schlacter v. Harbin, 273 Mich. 465. Gallagher’s statement, “Watch me give them a real scare,” does not'establish the fact that he was driving in a wanton and reckless manner. The case at bar is readily distinguishable from Boswell v. Docsa, 285 Mich. 559, where the driver while in great anger, cursing the occupants of his car, intentionally swerved his car from side to side, driving from 80 to 85 miles an hour. The fact that a defendant’s car was swaying, zigzagging from side to side, straddling'the center, does not constitute gross negligence. Bielawski v. Nicks, supra. The trial court did not err in holding that defendant driver was not guilty of gross negligence or wilful and wanton misconduct. Appellant claims that the defense of joint enterprise was not pleaded, nor raised, during the trial, therefore, cannot now be raised. However, the amended declaration expressly alleges that George Bushie was not engaged in a joint venture with defendants but was riding as a nonpaying guest without a common purpose. The answers of all defendants denied this allegation. The trial court, in his opinion granting the defendants’ motion for judgment non obstante veredicto, found that the occupants of the car were engaged in a joint enterprise for a common purpose within the meaning of Hanser *14 v. Youngs, 212 Mich. 508. Assuming, but not deciding, that the facts of the case establish a joint enterprise, such holding would not benefit the plaintiff. On the contrary, it would bar a recovery. The trial court held that, at most, Gallagher was guilty only of ordinary negligence, and the negligence of Gallagher would be imputable to George Bushie. Moore v. United States Truck Co., 260 Mich. 56. “If they were engaged in a joint enterprise, the negligence of the defendant would be imputable to the decedent, and would bar a recovery.” Frisorger v. Shepse, 251 Mich. 121. See, also, Manser v. Youngs, supra. Judgment affirmed, with costs to appellees. Sharpe, C. J., and North, Wiest, and Butzel, JJ., concurred with Boyles, J.